In part one, I argued that a popular way of thinking about creativity stems from the Romantic era. The act of authorship is an almost magical process, in which artists - who are better at accessing the subconscious and transforming it into the stuff of creative works - demonstrate their genius and giftedness. I also noted that this also happens to be one of the ways in which industries in the creative fields justify copyright law and the 'war' on piracy. Copyright, they say, is a tool which ensures that those gifted artists are adequately compensated for their work.
In this, part two of the lecture on "Ownership of Ideas", we will examine the history of copyright law over the last 600 years, and look at some of the justifications for its development and implementation, with particular emphasis on the Enlightenment values that shaped parts of the legislative process. We will look briefly at telescopes and poetry as forms of creative work which will help to illuminate ideas. And in the tradition of ancient epic poetry, right the way through to contemporary story-telling in filmic and televisual narratives, we will begin in media res.
As we saw in part one, the Founding Fathers of the American Constitution saw themselves as in the business of creating a nation on Enlightenment principles - reason, fairness, equality, freedom and the rejection of absolute power in the form of monarchy, religion or monomaniacal men.
It is worth taking a moment to conduct a thought experiment - to place yourselves in the mindset of those Founding Fathers, who had the opportunity to design a world to live in.
Imagine that before you are born, you are given the chance to choose the world in which you want to live. Do you want to be born into a world in which the accident of birth determines your place and chances of happiness in the world, given that you have a slim chance, statistically speaking, of being born into privilege, and a much greater chance of being born into the underclass of society, who are more numerous, living in poverty and more likely to suffer misery? Or would you choose to be born into a world where all men and women are equal, where everyone has an equal chance of happiness and prosperity?
Leaving aside for a moment that your choice here might determine whether your natural political inclination might be liberal and right-leaning if you choose the former, and socialist and left-leaning if you choose the latter, we might briefly note that a Marxist point of view would probably attempt to design a system which made perfect, reasonable sense in an ideal world of good-natured human beings. However, George Orwell in 1945 illustrated extremely well in his novel Animal Farm, that perfectly reasonable and rational approaches to designing social systems cannot account for the vagaries of what human beings will do.
In this light, we might concede that the American Constitution is possibly the best attempt that any group of people have ever produced that strove to shape a society that would reward merit, protect freedoms and limit the power of the state. There is much evidence that Franklin, Jefferson and the other Framers of the Constitution considered the real-politik of human behaviour, economics and idealism and strove to write a document that outlined a way for people to live freely, but as part of a society working to the benefit of all.
The Constitution separated the church from the state, limited the power of the president, and gave men the right to speak freely, and bear arms as a defence against state-armed militias. This measure, while it may have given rise to what is called the gun-culture in the USA, was intended as a mechanism to ensure that free men could defend themselves against an oppressive state - an obvious and pressing need in the view of those who had just fought for their independence form Great Britain in the American Revolution.
So in this climate of reason and social engineering, what was the attitude to copyright and intellectual property? Jefferson is very clear on the point in a letter to Isaac McPherson, written in 1813. He states:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation."
And here, crucially, Jefferson makes his assertion:
"Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."
Here then quite clearly we see that the view of the law-makers at the start of the 19th century saw the granting of intellectual property rights as a specifically 'social law' (as opposed to a self-evident 'natural law'), which a society chose to do purely on the basis that the ability to gain financial benefit was an incentive to intellectual production; and that intellectual production was of value to the 'moral and mutual instruction of man, and improvement of his condition'. In short, intellectual property is a gift of the state, an incentive for people to share their ideas for the benefit of society, rather than a natural right of the author.
In this same letter, Jefferson refers to the situation in England (whose imperial rule America had just successfully fought):
"It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs [...] generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."
England, then had a longer history of copyright and intellectual property law, so it's worth examining that history and the subsequent development of the body of law that covers intellectual property.
In 1557, the 'Worshipful Company of Stationers and Newspaper Makers' (now a conference venue) were granted a royal charter. The printing press had emerged as a powerful mechanism for the printing and dissemination of ideas. The royal charter granted the Stationer's Company the exclusive right to print and publish books, pamphlets and papers - the 'right to copy'. Such a monopoly ensured that there was only one legal route to printing and spreading ideas, and the Company also had the right and responsibility to seize any materials which did not conform to the requirements of Church and State. It is worth noting that this charter recognised and empowered only the publisher - the bottle-neck through which all material passed, rather than the author of a work.
Clearly, the first establishment of copyright, then, was an attempt to control the flow of information, in response to the rise of a new technology.
The monopoly previously given only to publishers is in 1709 transferred to the authors themselves, for a period of 14 years. Where under the Stationer's Company's charter, the publisher had a monopoly 'in perpetuity', the author is now given the monopoly for 14 years, and thereafter, the work may be reproduced by anyone else.
This is the first evidence that copyright law seeks to reward authors, and that the monopoly is granted only for a short term, after which the materials may be used and reproduced by others - the germs of Jefferson's idealistic vision of 'pursuing ideas which may produce utility'.
Copyright law is extended to cover engravings - the first legislative protection given to 'artistic' works.
It's worth noting that the industrialisation of textile production occurs in the last half of the 18th century.
3 years after the signing of the American Constitution, America, as in England, recognises the copyright only of works produced by its citizens.
Might this provision coincide with the rise of the middles classes to municipal power, and their expression of this power though the built environment - and hence for the first time, sculptors are working for profit in the service of the nouveau riche in their show-towns? Did it coincide with the new ability to mechanically reproduce and therefore industrialise sculpture? Did the 'craft' of the stone-mason-worker transmutate into an 'art' practised by the gifted?
I leave you to decide... mostly because I haven't had the time to do the research to assert any of these hypotheses :) In any case it is worth noting that scuplture is one of the oldest known practises in artistic expression, only recognised as copyrightable work at the turn in the 19th century.
Note, once again, the response of the law to technological progress.
The first example of copyright laws being extended to beyond the author's death.
We'll pause in the middle of the 19th century to assess what has occurred so far, and examine two important events: a court-case in London in the mid-18th century, and a debate in the British Parliament in the mid-19th century.
Clearly, Jefferson's criticism of English copyright law has some basis: its trajectory begins as a mechanism of censorship and control over emerging technologies and means of information production and dissemination. Over the course of the 18th century, though, we might argue that copyright law begins to recognise the author rather than the publisher, and widens its scope to include art forms. There is a very noticeable trend, however (which will continue throughout the 20th century) for copyright law to react and respond to technical developments - fabric printing, lithography, photography, etc. This is often seen as a feature of 'social' law, as opposed to 'natural' law - social laws cannot account for future developments precisely because they are constructed in response to social trends. So-called 'natural' laws, however, such as the criminalisation of murder, are arguably self-evident, and unlikely to need amendment. Indeed the exception to the outlawing of murder - war and capital punishment - requires 'social' law to legalise state-sponsored slaughter.
And if we cast our minds back to Jefferson's letter, he states, of property in general:
"no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society."
This is rather at odds, then, with the sudden introduction in 1862, of an extension of the copyright term to 7 years after the author's death, exploitable by the author's family and estate.
Earlier in 2007, Lewis Hyde gave a talk at the 5th Media in Transition conference at MIT. In it he described a court case in London which illuminates the instrumental purpose of copyright and patent law.
In 1733, Chester Moore Hall invented the achromatic telescope doublet - a device which helped to eliminate lensing effects. This invention was a trade secret - optical manufacturers knew of Hall's design, and with him, they enjoyed the effective monopoly of the design they were able to exploit, as no-one else knew how to make such a device. 25 years later, John Dolland 'reinvented' the same device, reverse-engineering it, and then filed a patent for the design. Being granted the patent allowed Dolland to demand royalties from those manufacturers who had already been selling these lenses. Obviously outraged by this cynical manoeuvre, they pursued Dolland in the court, basing their rejection of his demand for license fees on the fact that they had already been making this device for some time.
The court upheld Dolland's patent, and according to Hyde, their judgement was that "the commercial advantage that you get for having a patent is a reward not for having made the invention, but for having disclosed it to the public, so that when the limited period of the patent has expired, the public has the free access of this idea in perpetuity..." Indeed, quoting from the court ruling, Hyde says:
"It was not the person who locked up his invention in his writing desk that ought to profit from such an invention, but he who brought it forth for the benefit of mankind."
There is a clear sense, here, that intellectual property law is an incentive or reward for the sharing of knowledge, and this of course is in-keeping with the framing of intellectual property that we've seen from Jefferson.
In 1841, Mr Serjeant Talfourd, a member of the British Parliament and as it happens, an author, supported by the lobbying and petitioning of some of those very Romantic poets we met in part one - Wordsworth, Southey and Carlisle - put forward a bill which would extend copyright terms to 60 years beyond the author's death. Thomas Babington Macaulay made two famous speeches in response to the bill, in which he characterised copyright as a monopoly - a necessary evil - and argued instead for a fixed term of the author's life or 42 years, whichever expired first. The basis for Macaulay's support of the 42-year extension was simply that authors might be recompensed for the continued consumption of their work while they lived. The bill was rejected at least partly on the strength of Macaulay's argument.
Here are some of Macaulay's key points. We should not rely on men of means to supply society with good literature, only "from persons who make literature the business of their lives."
"It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright."
Macaulay dispenses with patronage as an adequate reward for pursuing literature, as he could conceive of "no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles". Instead, it must be copyright; but of copyright he says:
"It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good."
In part one, we examined the tension between the Enlightenment and Romanticism, and it should be clear now that that tension is also clearly expressed in the contest over copyright law: The Romantic emphasis on the author is put in the service of lobbying for copyright extension, while the benefit of society is seen as a priority by lawmakers from the mid-18th to mid-19th century.
We might reasonably say, then, that the Enlightenment-driven approach to permitting intellectual property law to flourish merely to benefit society, reaches its zenith, or indeed, apotheosis (or entrance into heavenly gates, and hence-forward its inevitable decline) in the 100 years surrounding the start of the 19th century.
The eventual success of the Romantic lobbyists is exemplified by the extension beyond the author's death from 1862 onwards. And as we continue our history of copyright, we'll see that the benefit of society is a declining priority.
The Berne Convention was the first international treaty recognising the copyrights originating in other countries. In 1886, this was an agreement between a few European countries. The Berne convention was the first to recognise (after the French tradition - and not the English tradition) the author's 'moral rights' to be recognised as the owner of the fruits of their intellectual labour. America refused to join the Berne convention, because (they argued) they did not recognise the 'moral rights' of the author, merely the incentive for intellectual production for the benefit of society.
Sound recordings added to the provision. Term extended to author's life plus 50 years.
As you can see by the date, this was again a reaction to technological developments, so the law was altered to provide for new cinematic works.
The World Intellectual Property Organisation, formed in 1967 as the offspring of the Berne Convention, is incorporated into the UN. WIPO is explicitly set up to 'promote intellectual property protection'.
The UK recognises the authors' 'moral rights' legally. Unpublished works protected for life plus 50 years. America signs the Berne convention - 102 years later.
Term extended to life plus 70 years.
The American government enacts the Digital Millenium Copyright Act, which (among other provisions) allows copyright holders to demand that potentially copyright infringing material be removed from the Internet.
There are subsequent acts, provisions and statutes, as well as others I've missed from this history. The selected events in this history, though, represent the general thrust of the development of the law. However, IANAL :)
Today, the copyright terms have been extended to:
I'm sure you'll be reassured to know that if no-one knows you created something, they still won't be able to steal your income for 70 years, even though, since no-one knows it is your work, you cannot claim any revenue anyway.
You'll also see the heirarchy of value in the different forms here, since of course, you have less right to exploit your copyright after your death if you're a CGI artist, than, say an oil-painting artist.
In this history we should be able to see the logic behind the 3 main defenses of copyright that have emerged:
However, we can note that the moral right of the author, as the Romantics may have argued, has only been widely legally recognised in the last few decades. The Enlightenment ideal of the benefit of society may have had an early emphasis, but this has arguably declined. And we have yet to see in the context of this lecture whether the economic incentive is a good reason for people to engage in intellectual production.
It can be tempting to see this history - the late recognition in 1988 of the author's moral rights, the extension of the copyright terms to benefit the estate and heirs - as a victory for the Romantic idea of the author and their unique creativity, at the expense of the Enlightenment ideal of intellectual production for the improvement of society.
However, in the third and last part of this lecture, we'll try to examine whether copyright law does, as its defenders claim, incentivise and protect the author's interests - and whether the law-makers still see intellectual property law as operating in the interest of society at large.
Some hippy folky trotsky stuff:
This history of intellectual property law is sometimes called the 'Second Enclosure Movement' - after the first movement (obviously) which saw the appropriation of common land into the hands of property owners. The common land was available to all for the grazing of livestock. A land-grab occurred in the late 18th and early 19th century where much common land was taken into private ownership by established land-owners. An anonymous poem from the time offers a pithy condemnation of the double standards at work in the movement:
The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.
The poor and wretched don't escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.
Joe Flintham 2000 - 2015
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